Undated and Misdated Mail-in Ballots Won’t Be Counted, Per Pennsylvania Supreme Court
In a 4-3 order issued today, the Pennsylvania Supreme Court vacated a Commonwealth Court decision that would have required counties in the battleground state to count mail-in ballots with missing or incorrect handwritten dates on their outer return envelopes.
According to the ruling, which stands to put thousands of voters at risk of disenfranchisement this November, the Commonwealth Court lacked jurisdiction over the matter since the plaintiffs failed to name all 67 Pennsylvania Counties as defendants to the lawsuit. The suit only named the counties of Philadelphia and Allegheny.
Nearly 20 voting and election lawsuits have been filed in Pennsylvania so far this cycle. Sign up for our free newsletters so you never miss a new lawsuit or court decision that could impact who takes the White House this fall.
By failing to address the date issue on the merits, the court’s move injects additional uncertainty into the upcoming Nov. 5 election in a state that is consequential to winning the presidential election.
Three justices dissented, noting that “[a] prompt and definitive ruling on the constitutional question presented in this appeal is of paramount public importance inasmuch as it will affect the counting of ballots in the upcoming general election.”
The order comes on the heels of an Aug. 30 decision from the Commonwealth Court concluding that the strict enforcement of Pennsylvania’s handwritten date requirement violates the fundamental right to vote guaranteed by the state constitution’s Free and Equal Elections Clause.
In May, a coalition of nonprofit groups led by Black Political Empowerment Project (BPEP) sued over what they describe as a “meaningless” requirement, arguing that counties don’t actually rely upon handwritten dates to determine a voter’s qualifications or the timeliness of a mail-in ballot. Rather, election officials utilize the time at which a ballot is received and scanned into Pennsylvania’s mail-ballot tracking system.
Pennsylvania election officials and the Democratic National Committee supported BPEP’s position, citing evidence that the handwritten date requirement resulted in the disqualification of over 10,000 mail-in ballots during the 2022 midterm elections alone. Post-election data demonstrate that thrown-out ballots disproportionately come from Democratic and elderly voters, who have a higher propensity to vote by mail.
Upholding the enforcement of the date requirement would “needlessly disenfranchise thousands of Pennsylvania voters, and sow electoral chaos shortly before the 2024 General Election,” county election officials wrote in a court brief.
After the Commonwealth Court ruled in BPEP’s favor last month, the Republican National Committee (RNC) and Republican Party of Pennsylvania appealed to the state’s highest court, which recently announced it would review certain election-related appeals on an expedited basis.
Despite the fact that instances of voter fraud are exceedingly rare, the Republicans maintained that the date requirement advances Pennsylvania’s interest in “preventing fraud” and preserving “the honesty and integrity of elections.” The Commonwealth Court’s ruling, according to the Republicans, amounted to a usurpation of the Pennsylvania Legislature’s “authority over elections.”
The Republicans further asserted that if the justices were to affirm the Commonwealth’s Court’s ruling, they would also need to strike down the entirety of Pennsylvania’s universal mail-in voting law, Act 77, which contains the handwritten date rule as well as a so-called “nonseverability provision.” That provision, the Republicans contended, requires that the whole law be struck down if a single aspect of it is deemed invalid — in this case, the act’s handwritten date rule.
But the opposing parties countered that barring the unconstitutional enforcement of Act 77’s date requirement leaves the law wholly intact, and thus doesn’t warrant a wholesale invalidation of the statue triggered by the nonseverability provision.
Today’s decision is not the first time the contested handwritten date issue made its way to Pennsylvania’s highest court. Ahead of the 2022 midterm elections, the court held that counties must disqualify undated or incorrectly dated mail-in ballots, with the justices evenly split on the question of whether failing to count such ballots violates the federal Civil Rights Act’s Materiality Provision.
Meanwhile, federal courts are currently considering whether tossing mail-in ballots based solely on date issues runs afoul of the U.S. Constitution. A federal judge previously held that the rejection of mail-in ballots based on missing or incorrect dates contravenes a provision of the Civil Rights Act, but the 3rd U.S. Circuit Court of Appeals overturned that decision.
As of now, it is unclear as to whether those federal cases will be resolved prior to the upcoming election.
Mimi McKenzie, legal director of the Public Interest Law Center, said in a statement that “[t]oday’s procedural ruling is a setback for Pennsylvania voters, but we will keep fighting for them.”
“These eligible voters who got their ballots in on time should have their votes counted and voices heard. The fundamental right to vote is among the most precious rights we enjoy as Pennsylvanians, and it should take more than a trivial paperwork error to take it away.”
Learn more about the case here.
Correction: A previous version of this article incorrectly stated that the Commonwealth Court held the strict enforcement of Pennsylvania’s handwritten date requirement does not violate the fundamental right to vote guaranteed by the state constitution’s Free and Equal Elections Clause.